Lyons v. Betts

[[COURTLISTENER_SUBOPINION {"id":"10629877","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
1                                                                        
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3                                                                        
4                                                                        
5                                                                        
6                 IN THE UNITED STATES DISTRICT COURT                    
7                     FOR THE DISTRICT OF ALASKA                         

8                                                                        

9   DULEY LYONS,                       No. 3:22-CV-00173-SHR             

10              Plaintiff,              Order Re: Pretrial Motions        

11   v.                                                                   

12                                                                        
    CINDY BETTS,                                                         

13                                                                        
               Defendant.                                                
14                                                                        
15        The  parties  have  filed  motions  in  limine  (Docs.  41,  43,  57,  65),  and 
16   Defendant has filed a related Motion to Amend Witness List (Doc. 62).  The Court 
17   ruled on one of these motions at the final pretrial conference.  (Doc. 71; see also 
18   Doc. 65.)  For the following reasons, the Court will deny Defendant’s motion to 
19   preclude recordings (Doc. 41), grant Plaintiff’s motion to exclude witnesses (Doc. 
20   43) in part as to Rachel Thompson and Andy Klamser but will otherwise deny the 
21   motion, will grant Plaintiff’s motion regarding criminal conviction evidence on Rule 
22   609 grounds but reserve ruling on Rule 404(b) grounds (Doc. 57), and will deny in 
23   part and grant in part Defendant’s Motion to Amend Witness List (Doc. 62).  
24    I.  Background                                                      
25        The Plaintiff, Duley Lyons, was an inmate at Palmer Correctional Center 
26   (PCC) in Palmer, Alaska, who was released in 2008.  (Doc. 1 ¶ 2.)  The Defendant, 
27   Cindy Betts, was the Superintendent and Head Warden of Palmer Correctional 
28   Center (PCC) during the time Plaintiff was housed there and for some time after 
1   Plaintiff’s release.  (Id. ¶ 3.)  Under
18 U.S.C. § 1983
, Plaintiff alleges during his 
2   time at PCC Defendant sexually assaulted him and then, when he was released 
3   from PCC, Defendant enslaved him in violation of the Eighth, Thirteenth, and 
4   Fourteenth Amendments to the United States Constitution. (Id. ¶¶ 16–31.)  Under 
5   Alaska  law,  Plaintiff  also  alleges  Defendant  falsely  imprisoned  him,  inflicted 
6   emotional distress upon him, and was negligent by engaging in sexual acts while 
7   he was a prisoner.  (Id. ¶¶ 32–44.)  The Defendant denies these claims.  (See 
8   generally Doc. 7.)  The parties filed no dispositive motions, and trial is set to begin 
9   on October 21, 2024.                                                 
10     a.  Scheduling Orders and Witness Lists Deadlines                  
11        According to the first scheduling order in this case, the preliminary witness 
12   list deadline was set for February 8, 2023, and the final discovery witness list 
13   deadline was set for May 5, 2023.  (Doc. 11 at 3.)  Both parties timely filed 
14   preliminary witness lists.  (Docs. 13, 14.)  Then, Defendant filed a motion to modify 
15   scheduling order (Doc. 15) which Plaintiff did not oppose.  Therefore, the Court 
16   granted this motion and set a new witness list deadline of October 31, 2023, for 
17   the disclosure of final witness lists.  (Doc. 16 at 3.)  This Order stated: “Unless 
18   otherwise ordered for good cause shown, only those lay witnesses disclosed in 
19   this final discovery witness list, and the expert witnesses that were timely identified, 
20   will be permitted to testify at trial.”  (Id. at 4.)  By October 31, 2023, Plaintiff had 
21   filed a final discovery witness list (Doc. 19), but Defendant had not. 
22        On August 13, 2024, a new scheduling order issued which set forth a 
23   different test for which witnesses will be allowed to testify at trial.  This order stated, 
24   in relevant part: “On or before October 1, 2024, each party will file and serve a trial 
25   witness list which shall include only persons who have been previously disclosed 
26   as potential witnesses in a timely filed prior witness list.”  (Doc. 31 at 2 (emphasis 
27   added).)                                                             
28   . . . .                                                              
1     b.  Motions Regarding Witnesses and Disclosure of Witness Lists    
2        On September 8, 2024, Plaintiff filed a motion in limine seeking “to exclude 
3   Defendant's witnesses as Defendant, in clear violation of the law, failed to file a 
4   final witness list pursuant to the Local Civil Rules of Federal Procedure and the 
5   scheduling order in this case.”  (Doc. 43 at 2.)  Defendant never responded to this 
6   motion, instead filing various witness lists and a motion to amend her witness list.  
7   (See Docs. 44, 54, 62.)                                              
8     c.  Defendant’s Motion to Exclude Recordings Under Oregon Law (Doc. 41) 
9        On  September  6,  2024,  Defendant  filed  a  motion  in  limine  seeking  “to 
10   exclude evidence of audio recordings obtained unlawfully.”  (Doc. 41.)  In the 
11   Motion, Defendant argues these recordings were recorded in Oregon and obtained 
12   in violation of Oregon law which requires both parties to consent to a recording.  
13   Plaintiff  opposed  Defendant’s  motion.    (Doc.  43.)    In  his  Opposition,  Plaintiff 
14   contends “Alaska Law applies to this case, and Alaska law is a one-party recording 
15   state that allows only one party to record the conversation.”  (Id. at 3.)  Additionally, 
16   Plaintiff notes “[a]lthough Oregon is also a one-party state, it appears to limit one-
17   party recordings to phone conversations and other limited exceptions.”  (Id.  
18        On September 9, 2024, the Court held a remote status conference.  (Doc. 
19   45.)  During the conference, the Court raised an issue related to this Motion and 
20   noted  the  briefing  was  incomplete.    After  the  conference,  the  Court  ordered 
21   supplemental briefing to address this issue.  (Doc. 49.)             
22     d.  Plaintiff’s Motion to Exclude Evidence of Plaintiff’s Criminal Record and 
23        Settlement Offers (Doc. 57)                                     
24        On October 3, 2024, Plaintiff filed a second motion in limine.  (Doc. 57.)1  In 
25   this Motion, Plaintiff requests the Court exclude evidence of Plaintiff’s criminal 
26                                                                        

27        1 This motion was filed after the deadline for motions in limine.  (See Doc. 
    31 at 2.)  Plaintiff failed to explain the late timing or request leave to file an untimely 
28   motion. Nevertheless, the Court will address the merits because Defendant did not 
    raise the timeliness issue and responded on the merits.  (See Doc. 59.)   
1   record or testimony regarding Plaintiff’s criminal convictions.  Plaintiff contends this 
2   evidence  violates  Rules  609  and  404  of  the  Federal  Rules  of  Evidence,  is 
3   irrelevant, is intended for the sole purpose of unduly prejudicing the Plaintiff, and 
4   will confuse the jury.  (Id. at 2.)                                  
5    II.  Standard                                                       
6        A motion in limine is “a procedural mechanism to limit in advance testimony 
7   or evidence in a particular area.”  United States v. Heller,
551 F.3d 1108, 1111
(9th 
8   Cir. 2009).  This Court has “inherent authority to manage the course of trials,” which 
9   includes ruling on motions in limine.  Luce v. United States,
469 U.S. 38
, 41 n.4 
10   (1984).  Moreover, motions in limine are “useful tools to resolve issues which would 
11   otherwise clutter up the trial.”  City of Pomona v. SQM N. Am. Corp.,
866 F.3d 
12   1060, 1070
(9th Cir. 2017).  Nevertheless, the Court’s rulings on motions in limine 
13   are inherently preliminary and “are not binding” because the Court “may always 
14   change [its] mind during the course of trial.”  Ohler v. United States,
529 U.S. 753
, 
15   758 n.3 (2000).                                                      
16   III.  Analysis                                                       
17     a.  Motion Regarding Audio Recordings (Doc. 41)                    
18        Defendant argues this Court should apply Oregon law to exclude two audio 
19   recordings of conversations between Plaintiff and Defendant recorded in Oregon.  
20   (Doc. 41 at 1.)  Defendant does not assert any of the Federal Rules of Evidence 
21   (FRE),  Ninth  Circuit  caselaw,  or  United  State  Supreme  Court  jurisprudence 
22   prohibits the introduction of this evidence.  Rather, Defendant contends Plaintiff 
23   recorded these conversations without Defendant’s consent, (Id.), and, accordingly, 
24   violated O.R.S. § 165.540, which prohibits, in relevant part, “obtain[ing] . . . any 
25   part of a conversation by means of any device . . . if not all participants in the 
26   conversation are specifically informed their conversation is being obtained.”  See 
27   also State v. Evensen,
447 P.3d 23
, 27–28 (Or. Ct. App. 2019) (“The prohibition 
28   against surreptitiously ‘obtaining’ a conversation includes surreptitiously recording 
1   it.”).  Without citing authority, Defendant appears to argue “[b]ecause Oregon law 
2   is more restrictive than federal law” and Defendant “would legitimately be entitled 
3   to rely upon the protection granted by the Oregon courts since the conversation 
4   oc[c]urred in Oregon,” this Court should preclude the evidence.  Plaintiff contends 
5   “Alaska law applies to this case, and Alaska is a one-party recording state that 
6   allows only one party to record the conversation.”  (Doc. 43 at 3.)  Defendant’s 
7   supplemental briefing failed to address the issues to any helpful extent.  
8        A  district  court  applies  federal  law  to  claims  invoking  federal  question 
9   jurisdiction, and substantive state law and federal procedural law to claims invoking 
10   diversity  or  supplemental  jurisdiction.  See  Cooper  v.  Tokyo  Elec.  Power  Co. 
11   Holdings, Inc.,
960 F.3d 549, 557
(9th Cir. 2020).  For claims involving state law, 
12   whether  brought  under  diversity  or  supplemental  jurisdiction,  federal  courts 
13   generally apply the substantive law of the forum state, which includes the forum 
14   state’s choice of law rules.  See, e.g., Knapke v. PeopleConnect, Inc.,
38 F.4th 
15
824, 832 (9th Cir. 2022).  Moreover, the FRE generally apply to all evidentiary 
16   issues,  regardless  of  whether  a  claim  is  brought  under  state  or  federal  law, 
17   because evidentiary rules are generally considered procedural under Erie.  See 
18   Wray v. Gregory,
61 F.3d 1414, 1417
(9th Cir. 1995).                 
19        However,  there  are  narrow  exceptions  which  would  render  a  state 
20   evidentiary rule substantive if it is “‘intimately bound up’ with rights and obligations 
21   being asserted.”
Id.
(citation omitted).  Applying these principles in Wray, the Ninth 
22   Circuit held Nevada law applied to determine the admissibility of a screening 
23   panel’s  findings  because  Nevada  required  parties  to  bring  their  medical 
24   malpractice disputes before the screening panel as a condition precedent to filing 
25   suit.
Id. at 1418
.  The Ninth Circuit concluded allowing a party to use the screening 
26   panel’s findings under the FRE but in violation of Nevada evidentiary law would 
27   disturb Nevada’s integrated medical malpractice dispute system and encourage 
28   forum shopping.
Id.
1        Defendant has not demonstrated O.R.S. § 165.540 is so “intimately bound 
2   up” with the rights and obligations asserted by Plaintiff such that § 165.540 must 
3   supplant the FRE.  Plaintiff asserts claims under federal and Alaska law, not 
4   Oregon law.  Thus, unlike in Wray, there are no Oregon rights or obligations 
5   asserted by either party grounded in Oregon substantive law.  Accordingly, the 
6   Court sees no concerns in admitting the evidence even though it may have been 
7   obtained in violation of Oregon law.  And this Court’s ruling does not interfere with 
8   any  Oregon  obligations  because  Oregon  law  enforcement  officials  could  still 
9   charge Plaintiff for the crime of recording these specific conversations.   
10        Moreover, even assuming the Court could construe the Oregon statute as 
11   substantive, Defendant utterly failed to provide a choice of law analysis under 
12   Alaska law explaining why, under Alaska’s choice of law rules, Oregon law, rather 
13   than Alaska law, should apply.  See Cooper,
960 F.3d at 557
.  A district court 
14   exercising supplemental jurisdiction over state law claims must generally apply the 
15   forum’s law, i.e. Alaska law here, unless Alaska’s choice of law rules dictate 
16   Oregon law should apply.  Therefore, the Court will deny Defendant’s Motion.   
17     b.  Motion Regarding Criminal Record (Doc. 57)                     
18        Plaintiff  argues  this  Court  should  prevent  Defendant  from  introducing 
19   Plaintiff’s  entire  criminal  record  and  testimony  regarding  Plaintiff’s  criminal 
20   convictions under Rules 609 and 404 of the Federal Rules of Evidence.  (Doc. 57 
21   at 1–2.)  In response, under Rule 609, Defendant argues the probative value 
22   substantially outweighs any prejudicial effect because Plaintiff’s criminal record 
23   rebuts his allegations against Defendant.  (Doc. 59 at 2–3.)  Defendant did not 
24   respond to Plaintiff’s argument under Rule 404.  (See id.)           
25        Generally,  a  party  can  attack  a  witness’s  character  for  truthfulness  by 
26   evidence of a criminal conviction subject to certain limitations.  Fed. R. Evid. 
27   609(a).  “[F]or a crime that, in the convicting jurisdiction, was punishable by death 
28   or by imprisonment for more than one year, the evidence . . . must [generally] be 
1   admitted, subject to Rule 403, in a civil case . . . .”  Rule 609(a)(1)(A).  However, 
2   “if more than 10 years have passed since the witness’s conviction or release from 
3   confinement  for  it,  whichever  is  later[,] . . . [e]vidence  of  the  conviction  is 
4   admissible  only  if:  (1)  its  probative  value,  supported  by  specific  facts  and 
5   circumstances, substantially outweighs its prejudicial effect; and (2) the proponent 
6   gives an adverse party reasonable written notice of the intent to use it . . . .”  Rule 
7   609(b).  Moreover, evidence of a juvenile adjudication is not admissible under this 
8   Rule in a civil case.  See Rule 609(d).2                             
9        Courts in the Ninth Circuit consider five factors in balancing the probative 
10   evidence of a defendant's prior conviction against its prejudicial effect: “(1) the 
11   impeachment value of the prior crime; (2) the point in time of the conviction and 
12   the witness's subsequent history; (3) the similarity between the past crime and the 
13   [party’s alleged actions in the instant case]; (4) the importance of [the party’s] 
14   testimony; and (5) the centrality of [the party’s] credibility.” United States v. Hursh, 
15
217 F.3d 761, 768
(9th Cir. 2000).                                   
16        Additionally, Rule 404(b) prohibits introducing evidence of a crime to prove 
17   the person’s character if the purpose is to show the person acted in conformity with 
18   the  character  on  a  particular  occasion.    However,  “[t]his  evidence  may  be 
19   admissible  for  another  purpose,  such  as  proving  motive,  opportunity,  intent, 
20   preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”  
21
Id.
Rule 404(b) is a “rule of inclusion,” meaning “[e]vidence of other crimes or acts 
22   is admissible under Rule 404(b), except where it tends to prove only criminal 
23   disposition.”  United States v. Ayers,
924 F.2d 1468, 1473
(9th Cir. 1991) (internal 
24   quotation marks omitted) (quoting United States v. Sangrey,
586 F.2d 1312
, 1314 
25                                                                        

26        2  Although the parties allude to juvenile adjudications in Plaintiff’s criminal 
    history, the parties never specifically describe the evidence sought to be excluded 
27   or offered in their briefing.  In case the Defendant intends to attempt introducing 
    juvenile adjudications, the Court reminds Defendant this type of evidence is never 
28   admissible in a civil case.  To the extent Plaintiff’s motion seeks to exclude these 
    juvenile adjudications, if any, the motion is granted.               
1   (9th Cir.1978)).  “[I]f evidence of prior crimes bears on other relevant issues,” the 
2   Court will not exclude it under 404(b).  United States v. Cruz-Garcia,
344 F.3d 951
, 
3   954 (9th Cir. 2003).  To guide this inquiry, the Court evaluates whether (1) sufficient 
4   evidence exists for the jury to find the person committed the other acts; (2) the 
5   other acts are introduced to prove a material issue in the case; (3) the other acts 
6   are too remote in time; and (4) if admitted to prove intent, the other charged acts 
7   are similar to acts at issue.  See United States v. Bradley,
5 F.3d 1317, 1320
(9th 
8   Cir. 1993).  Additionally, because Rule 403 is baked into the Rule 404(b) inquiry, 
9   the Court must also determine whether the probative value of the evidence is 
10   substantially outweighed by the danger of unfair prejudice. See United States v. 
11   Mayans,
17 F.3d 1181, 1183
(9th Cir. 1994); United States v. Lozano,
623 F.3d 
12   1055, 1060
(9th Cir. 2010).                                          
13        Here,  the  Court  finds  Plaintiff’s  criminal  conviction  inadmissible  for 
14   impeachment under Rule 609 but will reserve ruling on using this evidence for one 
15   of the proper purposes under Rule 404(b).                            
16        Regarding the Rule 609 analysis, based upon the Court’s review of the 
17   record, it appears the convictions Defendant intends to introduce are more than 10 
18   years old.  Therefore, these are subject to the Rule 609(b) analysis—whether the 
19   convictions are substantially more probative than prejudicial. The Defense stated 
20   the  Plaintiff’s  criminal  history  is  substantially  more  probative  than  prejudicial 
21   because 1) Plaintiff relies on this evidence in the complaint, 2) the allegations are 
22   based in part on actions occurring while Plaintiff was incarcerated, 3) Plaintiff’s 
23   expert relied on Plaintiff’s criminal history, and 4) Plaintiff’s criminal history rebuts 
24   his allegations.  Defendant is mistaken.  There is a distinction between Plaintiff 
25   introducing sanitized evidence of his own criminal history to some extent in support 
26   of  his  claims  and  Defendant  introducing  details  of  Plaintiff’s  past  crimes.  
27   Defendant has not  explained exactly  why Plaintiff’s  criminal history would be 
28                                                                        
1   probative of any fact at issue.3  Therefore, the Court finds the probative value of 
2   the criminal history for impeachment purposes does not substantially outweigh its 
3   prejudicial effect and will grant the motion on this basis.          
4        Regarding the portion of Plaintiff’s motion under Rule 404(b), the Court does 
5   not have enough information at this time about how the evidence will be used to 
6   make an informed ruling.  The Court cannot say for certain Defendant will use this 
7   evidence to prove only criminal disposition.  See Ayers,
924 F.2d at 1473
.  While 
8   the Court could envision a proper use of this evidence in theory, Defendant does 
9   not include a 404(b) analysis in her response or explain the proper purpose for 
10   introducing the evidence.  Furthermore, the parties do not include enough details 
11   about  Defendant’s  criminal  history  to  allow  the  Court  to  evaluate  whether  its 
12   probative  value  would  be  substantially  outweighed  by  the  danger  of  unfair 
13   prejudice.  See Lozano,
623 F.3d at 1060
.  Therefore, the Court will reserve ruling 
14   on whether there is a proper use of this evidence under Rule 404(b) and 403 until 
15   the time of trial.4                                                  
16     c.  Motions Regarding Witnesses (Docs. 43, 62)                     
17        Two motions have been filed regarding the witness list issue.  (See Docs. 
18   43, 62).  First, Plaintiff filed a motion requesting Defendant be precluded from 
19   calling any witnesses due to her failure to file a final witness list pursuant to the 
20   Local Civil Rules5 and prior scheduling orders in this case, and separately requests 
21   preclusion of witnesses never initially disclosed under the Federal Rules of Civil 
22                                                                        
23                                                                        
         3 Defendant requests the Court “allow Ms. Betts to use the entirety of Mr. 
24   Lyons’ criminal records to support her defense.”  (Doc. 59 at 3.)  This does not 
    explain which convictions Defendant plans to use or how Defendant plans to use 
25   them.                                                                
         4 Plaintiff throws in an aside requesting no evidence be admitted in violation 
26   of Rule 408.  (Doc. 57 at 4.)  This seems to be no more than a request for the Court 
    to follow the FRE during the trial, which it intends to do regardless.  Without any 
27   context or analysis provided, the Court cannot properly analyze this request.    
         5 The Court will not address District of Alaska Local Civil Rule 16.1(c) 
28   because there are scheduling orders supplanting its general requirements and the 
    local rule states it operates “[u]nless otherwise ordered.”          
1   Procedure.6    (Doc.  43  at  2.)    As  to  those  witnesses  never  disclosed  during 
2   discovery, Plaintiff states he would be “unfairly prejudiced” if the Court allowed 
3   these new witnesses to testify when they were only disclosed at this late stage.  
4   (Id. at 3.)  Defendant did not respond to this motion.  Instead, Defendant filed two 
5   subsequent witness lists and a motion to amend/correct her witness list (Doc. 62).   
6        Federal  Rule  of  Civil  Procedure  26  establishes  the  required  initial 
7   disclosures for litigating parties.  As relevant here, Rule 26(a)(3)(A) requires the 
8   disclosure of witnesses “the party expects to present and those it may call if the 
9   need arises.”  If a party fails to disclose witnesses as required by Rule 26 or the 
10   Court’s orders, Rule 37 provides “the party is not allowed to use” those undisclosed 
11   witnesses to supply evidence at trial, “unless the failure was substantially justified 
12   or harmless.”  Fed. R. Civ. P. 37(c)(1).  The party requesting Rule 37 sanctions 
13   has the burden of proving the opposing party violated Rule 26.  After the moving 
14   party has met its burden, then “[t]he party facing sanctions bears the burden of 
15   proving  that  its  failure  to  disclose  the  required  information  was  substantially 
16   justified or harmless.”  R & R Sails, Inc. v. Ins. Co. of Pa.,
673 F.3d 1240
, 1246 
17   (9th Cir. 2012).  Four factors guide this determination: “(1) prejudice or surprise to 
18   the party against whom the evidence is offered; (2) the ability of that party to cure 
19   the prejudice; (3) the likelihood of disruption of trial; and (4) bad faith or willfulness 
20   in not timely disclosing the evidence.”  Liberty Ins. Corp. v. Brodeur,
41 F.4th 1185
, 
21   1192 (9th Cir. 2022) (quoting Silvagni v. Wal-Mart Stores, Inc.,
320 F.R.D. 237
, 
22   242 (D. Nev. 2017)).                                                 
23        The purpose of Rules 26 and 37 is to make trial “less a game of blindman’s 
24   buff and more a fair contest with the basic issues and facts disclosed to the fullest 
25   practical extent.”  Scott & Fetzer Co. v. Dile,
643 F.2d 670, 674
(9th Cir. 1981) 
26   (quoting Goldman v. Checker Taxi Co.,
325 F.2d 853, 855
(7th Cir. 1963)).  The 
27                                                                        
         6 Plaintiff does not specify which of the Federal Rules of Civil Procedure 
28   warrants preclusion.  Accordingly, the Court will construe this portion of Plaintiff’s 
    motion as a request for exclusion sanctions under Rule 37.           
1   Ninth Circuit affords district courts “particularly wide latitude” in applying Rule 
2   37(c)(1) to exclude “information” a party failed to provide under Rule 26.  Ingenco 
3   Holdings, LLC v. Ace Am. Ins. Co.,
921 F.3d 803, 821
(9th Cir. 2019); see also 
4   Merch. v. Corizon Health, Inc.,
993 F.3d 733, 740
(9th Cir. 2021) (“[T]he rule is 
5   automatic in the sense that a district court may properly impose an exclusion 
6   sanction where a noncompliant party has failed to show that the discovery violation 
7   was either substantially justified or harmless.”).                   
8        To the extent  Plaintiff seeks preclusion of all of  Defendant’s witnesses 
9   because of Defendant’s failure to file  a final witness list, the Court  will deny 
10   Plaintiff’s motion.  Here, three separate scheduling orders are operating, and the 
11   latest one has materially different language.  The first scheduling order (Doc. 11) 
12   set a final discovery witness list deadline of May 5, 2023, and stated “[u]nless 
13   otherwise ordered for good cause shown, only those lay witnesses disclosed in 
14   this final discovery witness list, and the expert witnesses that were timely identified, 
15   will be permitted to testify at trial.”  (Id. at 3–4.)  The second scheduling order 
16   contained the same language and reset the final witness list deadline to October 
17   31, 2023  (Doc. 16 at 3–4.)  The third, and most recent, scheduling order stated 
18   “[o]n or before October 1, 2024, each party will file and serve a trial witness list 
19   which shall include only persons who have been previously disclosed as potential 
20   witnesses in a timely filed prior witness list.”  (Doc. 31 at 2 (emphasis added).)   
21        While Defendant failed to abide by the second scheduling order and failed 
22   to file any final witness list in October 2023, according to the most recent order, 
23   Defendant  can  call  any  witnesses  he  has  listed  so  long  as  they  were  also 
24   previously disclosed as potential witnesses in a timely filed prior witness list, 
25   including  Defendant’s  initial  witness  list  filed  February  8,  2023.    It  appears 
26   Defendant listed Selina Manson, Adam Manson, Solitaire Betts, Jamie Monaghan, 
27   Cindy Betts, and Duley Lyons in its initial list and intends to call those witnesses.  
28   (See Doc. 14.)  Therefore, Defendant can call these six witnesses.   
 1          Next,  to  the  extent  Plaintiffs  motion  calls  for  Rule  37  sanctions  and  the 
       exclusion  of  witnesses  never  disclosed  during  discovery,  the  Court  will  grant 
       Plaintiffs motion.  Witnesses Rachel Thompson and Andy Klamser were not listed 
4||    in  Defendant's initial  Rule 26 witness disclosure.  Therefore,  Plaintiff has met his 
5||    burden of proving  Defendant violated  Rule 26 as to these two witnesses.  Upon 
6||    this showing, the burden then shifted to Defendant to prove her failure to disclose 
  ||  the required information was substantially justified or harmless.  See R & R Sails, 
  □□  673F.3d at 1246.  Defendant makes no attempt to meet her burden and, especially 
9||    in  the  absence  of  any  attempt,  the  Court finds  unfair  prejudice  and  surprise  to 
      Plaintiff.  These witnesses were disclosed for the first time just over  a month before 
      the trial was set to begin, leaving Plaintiff with virtually no time to cure the prejudice 
12||    inherent  in  such  a  late  disclosure.  Therefore,  the  Court will  exclude  these two 
13 ||  witnesses under Rule 37. 
14],    IV.    Conclusion 
15          IT  IS  ORDERED  Defendant’s  motion  to  preclude  recordings  (Doc.  41)  is 
16||    DENIED, Plaintiff's motion to exclude witnesses (Doc. 43) is GRANTED in part as 
       to Rachel Thompson and Andy Klamser but otherwise DENIED,  Plaintiff's motion 
  ||  regarding criminal conviction evidence and settlement offers (Doc. 57) is DENIED 
      in part under Rule 404(b) and Rule 408 with leave to object at trial and GRANTED 
       in part on Rule 609 grounds, and Defendant’s Motion to Amend Witness List (Doc. 
21];    62)  is DENIED in  part to the extent it seeks to add  Rachel Thompson and Andy 
22 ||  Klamser but otherwise GRANTED. 
23          Dated this 16th day of October, 2024. 
24                                                           

26                                                        Honorable Scott H. Rash 
                                                    \._/   United States District Judge 
28 

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